Key Statistics and Findings on Asylum Protection Requests at the U.S.–Mexico Border

During the past few years, the number of people arriving at the Southern U.S. border expressing a fear of return to their countries has been significantly increasing. To learn more about the increase in protection requests, Human Rights First conducted extensive research in March and April 2014, visiting key border points, U.S. Border Patrol stations, and immigration detention centers in south Texas, Arizona, and California. We interviewed lawyers and legal and social service providers in these areas and in other states where border crossers are often transferred including Florida, Pennsylvania, and New Jersey. Our analysis was also informed by our direct experienced providing pro bono representation to asylum seekers, many of whom initially sought protection at the border.

The information below is a selection of Human Rights First’s findings and key statistics. For full findings, and recommendations, see the Blueprint: How to Protect Refugees and Prevent Abuse at the Border.

The expansion of expedited removal to the interior and the increase in credible fear screenings

Expedited removal allows immigration enforcement officers, rather than immigration judges, to order the deportation of immigrants lacking valid documentation. To ensure that those fleeing persecution would not be deported, Congress included a screening process known as “credible fear” within expedited removal. Expedited removal authority was initially applied only to those crossing at official ports of entry, but beginning in 2004 the Department of Homeland Security authorized its expanded use to include those apprehended within 100 miles of the border and within 14 days of illegal entry. As a result, the number of individuals placed in expedited removal by border officials, especially as funding for border and immigration enforcement has skyrocketed, has significantly increased, growing from 84,020 in FY 2005 to 174,048 in FY 2012, the last year for which data was available. In FY 2012, 83 percent of expedited removal apprehensions made by Customs and Border Protection (CBP) Office of Field Operations (OFO) and Border Patrol were made by Border Patrol between ports of entry, rather than by OFO at official ports of entry.

Along with the increased use of expedited removal, the overall number of referrals for credible fear screenings has increased significantly from FY 2004 to the present, growing from 7,917 in FY 2004 to 36,035 in FY 2013. Similarly, the vast majority of referrals for credible fear interviews now come from the interior. In FY 2013, 76 percent of credible fear referrals came from interior apprehensions. In the first half of FY 2014, this percentage has grown to 81 percent.

The processing interviews for asylum seekers detained at the busiest Border Patrol stations take place in crowded, open areas, sometimes by telephone rather than in person, with other migrants and armed Border Patrol officers in the immediate vicinity of individuals being processed. Many service providers and asylum seekers reported that individuals were not properly advised or asked about fears of return or were ignored when they expressed fear.

Increase in credible fear screenings overall, and especially by telephone

Overall, credible fear interviews increased from 7,917 in FY 2004 to 36,035 in FY 2013.The percentage of credible fear interviews conducted telephonically has also sharply increased, especially beginning in FY 2011. In FY 2013, 60 percent of credible fear screenings, or 19,810 out of a total 32,785, were conducted by telephone; in the first half of FY 2014 this proportion has increased to 68 percent. In the first half of FY 2014, 1,731 asylum seekers were denied the chance to file an application for asylum in the United States based on a credible fear interview conducted by telephone.

The USCIS Asylum Division has had limited resources with which to address the substantial increase in credible fear screenings, which the agency is required to process very quickly, and reasonable fear screening interviews. While resources for the immigration enforcement authorities who initiate expedited removal and reinstatement of removal proceedings have soared, there has been no commensurate increase in resources for the portions of expedited removal and reinstatement of removal entrusted to the USCIS Asylum Division. In addition to conducting these screening interviews, the Asylum Office also manages its regular caseload of those who apply for asylum affirmatively.

Telephonic credible fear screenings often take place in small rooms inside detention facilities, with an interpreter available only by telephone. Human Rights First observed a credible fear screening area that consisted of only a small booth without a ceiling, raising serious confidentiality concerns. While the asylum office does not see a lower grant rate for telephonic interviews, these interviews can result in mistranslations, misunderstandings, inaccuracies, and discomfort in recounting difficult or traumatic experiences – all of which are critical not only to the credible fear finding, but also because the transcript of the interview may later be used against an asylum seeker in immigration court.

Credible fear grant rates are steady and below 2004 levels

The number of credible fear referrals resulting in positive findings fell from 94 percent in FY 2004 to 60 percent in FY 2007, and then rose to 84 percent in FY 2013; they have remained at a fairly similar level since, though early data reflects a dip from 84 percent in FY 2013 to 80 percent in the first half of FY 2014. Note: data presents the percentage of cases where credible fear was found as a proportion of total credible fear cases initiated (i.e. cases where fear was found, cases where fear was not found plus cases initiated but then administratively closed).

Lack of information and misinformation exacerbates difficulties in access to protection and creates inefficiencies

Government officials, legal service providers, and asylum seekers we interviewed reported that individuals lack access to key information at all stages of the process.

Cost-saving Legal Orientation Programs that provide legal information presentations are currently provided at only 25 of ICE’s approximately 250 detention facilities around the country. Even where they exist, access for service providers is often facilitated only after the credible fear screening stage.

Only approximately one in five detained individuals has representation in immigration proceedings.

Many do not receive adequate information at the time they are released from detention about the details of requirements to check in with ICE officials or details concerning when or where upcoming court dates will take place.

Resource imbalance creates backlogs and concerns

Ultimately, compared to the 300 percent increase in immigration enforcement funding, there has been no commensurate increase in resources for the credible fear screening component of expedited removal (nor for the reasonable fear interviews conducted as part of reinstatement of removal), nor for the immigration courts that later adjudicate these cases.

As a result of the deployment of asylum officers from the affirmative asylum process to the under-resourced credible fear screening process, the Asylum Division is experiencing a significant backlog in its affirmative asylum caseload, with 45,193 applications pending as of March 2014. Many wait months or even years.

With insufficient resources, little support staff, and an overwhelming caseload, the immigration courts have not kept up with the increase in immigration enforcement. Currently over 366,000 cases are pending in immigration courts across the country, with an average wait time of 578 days.

Below is a shortened transcript of the July 16 media telebriefing featuring former Commissioner of the U.S. Immigration and Naturalization Services (INS) under George W. Bush Jim Ziglar; Leslie Vélez...